The old axiom that there’s no right to privacy under UK law has been the sword and shield of journalists since time immemorial. Indeed, so hungry is today’s press for personal detail on public figures that it seems to be the case that the revelations of the recent Liberal Democrat leadership battle were made in response to threat of media attention.
Mark Oaten, who until the middle of January was a contender for the Liberal Democrat’s leadership, resigned from the party over tabloid revelations that he had had a relationship with a 23 year-old man. The MP – who is married with children – had also allegedly paid for sex.
Strictly speaking, it is true that there is no separate law of privacy in the UK. In reality though, a flurry of high-profile celebrity cases has forced the courts to create fledgling law of privacy on a case-by-case basis. Unsurprisingly, when you try to fit one legal right into another, entirely different type of legal right, there is bound to be conflict and confusion. The law is not developing in a logically coherent way so is unpredictable. That said, the media would still do well to keep an eye on the emerging law of privacy and, by examining the cases to date, it is possible to extract some general guidance.
When Naomi Campbell successfully sued Mirror Group Newspapers, it was on the grounds that the photographs – not the revelation that she was receiving treatment – constituted a breach of privacy. Rather than simply setting the record straight about her previous denials, photographing the actual place of treatment crossed the line of acceptability.
This issue of morality and role models was also central to another high profile case. Last year, David and Victoria Beckham tried to stop the News of the World printing revelations about their marriage from a former nanny, who had signed a confidentiality agreement. The court refused to prevent the publication, since it arguably presented evidence that the couple had deliberately misled the public for financial gain, exploiting an image the nanny claimed was false.
Although not binding upon the UK courts, the European Court of Human Rights’ decision involving Princess Caroline of Monaco provides an interesting perspective of the, often symbiotic, relationship between celebrities and the media. When the court ruled that photographs of the princess going about her daily life invaded her privacy, the case was initially viewed as a massive extension of the right to a private life.
On one view, the decision separates public figures into categories with different levels of protection. Caroline, as a princess, was born into a public role. This is in sharp contrast to an average celebrity, who has chosen to exploit their status and, metaphorically, to live and die by the sword. Again, this logic tallies with the subsequent Beckham ruling, in which the UK courts demonstrated their willingness to take account of previous commercial exploitation.
However, the issue becomes even more confused with the introduction of an entire subset of further privacy rights issues, highlighted in the case brought by Michael Douglas and Catherine Zeta-Jones against Hello! magazine, for publishing unauthorised pictures of their wedding. In this case, the Court of Appeal held the couple had a right to the protection of the private details but, at the same time, had the right to sell exclusive photographs to rival OK! magazine.
While framed as a question of privacy, in reality this was a contractual dispute about the exploitation of image rights by celebrities. The ruling recognises that an owner of private information can simultaneously keep it private and use it to their commercial benefit. Interestingly, however, the court prevented OK! magazine from suing Hello! for damages for running spoiler photos, because OK! did not actually own the photographs. Given that OK! had paid substantial amounts for use of the photographs this is obviously of some concern to those in the media dealing with exclusive stories.
Viewed cynically, the current state of the law appears to give celebrities who exploit their image a greater right to privacy than ordinary individuals – something which does not sit comfortably with the Princess Caroline decision. Quite simply, the law of confidence is intended to deal with trade secrets and cannot adequately distinguish between image rights and genuinely private personal information.
Celebrity is an industry predicated entirely on the value of image. However, while the courts continue to be forced, by a lack of specific legislation, to reinterpret existing law far beyond the boundaries of its original purpose, uncertainty will continue to reign. Finally, should there be any doubt that the law has failed to keep pace with today’s media environment, consider that out of almost 130 breaches of the Press Complaints Commission’s privacy code in 2005, only six went to court.
Robert Buchan is a lawyer specialising in intellectual property with Maclay Murray & Spens.